{ "id": 4274424, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMIE DIAZ, Defendant-Appellant", "name_abbreviation": "People v. Diaz", "decision_date": "2007-11-05", "docket_number": "No. 1-06-2690", "first_page": "339", "last_page": "352", "citations": [ { "type": "official", "cite": "377 Ill. App. 3d 339" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "273 Ill. App. 3d 396", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 258757 ], "year": 1995, "pin_cites": [ { "page": "403" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/273/0396-01" ] }, { "cite": "186 Ill. 2d 83", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 243850 ], "year": 1999, "pin_cites": [ { "page": "93" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/186/0083-01" ] }, { "cite": "193 Ill. 2d 545", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 963702 ], "year": 2000, "pin_cites": [ { "page": "552" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/193/0545-01" ] }, { "cite": "131 Ill. 2d 115", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5570265 ], "year": 1989, "pin_cites": [ { "page": "124" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/131/0115-01" ] }, { "cite": "349 Ill. App. 3d 622", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5434007 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/ill-app-3d/349/0622-01" ] }, { "cite": "226 Ill. 2d 245", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3610545 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "248" }, { "page": "276" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/226/0245-01" ] }, { "cite": "293 F. 1013", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 11720199 ], "weight": 2, "year": 1923, "pin_cites": [ { "page": "1014" }, { "page": "1014" } ], "opinion_index": 0, "case_paths": [ "/f/293/1013-01" ] }, { "cite": "209 Ill. 2d 194", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5461336 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "220" }, { "page": "220" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/209/0194-01" ] }, { "cite": "225 Ill. 2d 125", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5704722 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "135" }, { "page": "135" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/225/0125-01" ] }, { "cite": "162 Ill. 2d 465", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 477534 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "476", "parenthetical": "counsel's trial strategy is \"virtually unchallengeable\"" }, { "page": "476" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/162/0465-01" ] }, { "cite": "108 Ill. 2d 349", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3130148 ], "year": 1985, "pin_cites": [ { "page": "353" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/108/0349-01" ] }, { "cite": "223 Ill. App. 3d 423", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5255600 ], "year": 1991, "pin_cites": [ { "page": "429" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/223/0423-01" ] }, { "cite": "187 Ill. 2d 271", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1131039 ], "year": 1999, "pin_cites": [ { "page": "287", "parenthetical": "finding the defendant had invoked his right to remain silent when he placed his hands over his ears, turned his head, and chanted \" 'nah nah nah' \"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/187/0271-01" ] }, { "cite": "384 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12046400 ], "weight": 6, "year": 1966, "pin_cites": [ { "page": "444-45" }, { "page": "707" }, { "page": "1612" }, { "page": "474" }, { "page": "723" }, { "page": "1628" } ], "opinion_index": 0, "case_paths": [ "/us/384/0436-01" ] }, { "cite": "301 Ill. App. 3d 966", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 257197 ], "year": 1998, "pin_cites": [ { "page": "977" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/301/0966-01" ] }, { "cite": "195 Ill. 2d 142", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 725352 ], "year": 2001, "pin_cites": [ { "page": "163" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/195/0142-01" ] }, { "cite": "373 Ill. App. 3d 811", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4271066 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "821" }, { "page": "821" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/373/0811-01" ] }, { "cite": "104 Ill. 2d 504", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3147214 ], "year": 1984, "pin_cites": [ { "page": "526" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/104/0504-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 12, "year": 1984, "pin_cites": [ { "page": "687-94" }, { "page": "693-98" }, { "page": "2064-68" }, { "page": "687" }, { "page": "693" }, { "page": "2064" }, { "page": "694" }, { "page": "698" }, { "page": "2068" }, { "page": "694" }, { "page": "698" }, { "page": "2068" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "371 Ill. App. 3d 382", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4268505 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "434" }, { "page": "434", "parenthetical": "a mistake in trial strategy or tactics, without more, does not amount to ineffective assistance of counsel" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/371/0382-01" ] }, { "cite": "224 Ill. 2d 312", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3606828 ], "year": 2007, "pin_cites": [ { "page": "348" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/224/0312-01" ] }, { "cite": "253 Ill. App. 3d 1048", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5423191 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "1052" }, { "page": "1052" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/253/1048-01" ] }, { "cite": "32 Ill. App. 3d 793", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2796437 ], "year": 1975, "pin_cites": [ { "page": "799" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/32/0793-01" ] }, { "cite": "127 Ill. 2d 390", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5564096 ], "year": 1989, "pin_cites": [ { "page": "402" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/127/0390-01" ] }, { "cite": "325 Ill. App. 3d 22", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 570634 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "34" }, { "page": "33" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/325/0022-01" ] }, { "cite": "195 Ill. 2d 378", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 725361 ], "year": 2001, "pin_cites": [ { "page": "387" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/195/0378-01" ] }, { "cite": "196 Ill. 2d 236", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 351233 ], "year": 2001, "pin_cites": [ { "page": "259" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/196/0236-01" ] }, { "cite": "170 Ill. App. 3d 581", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3585087 ], "year": 1988, "pin_cites": [ { "page": "592" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/170/0581-01" ] }, { "cite": "106 Ill. 2d 237", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3138930 ], "year": 1985, "pin_cites": [ { "page": "261" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/106/0237-01" ] }, { "cite": "212 Ill. 2d 274", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2444253 ], "year": 2004, "pin_cites": [ { "page": "278" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/212/0274-01" ] }, { "cite": "149 Ariz. 269", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 1480115 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "271" }, { "page": "173" } ], "opinion_index": 0, "case_paths": [ "/ariz/149/0269-01" ] }, { "cite": "119 Idaho 878", "category": "reporters:state", "reporter": "Idaho", "case_ids": [ 4413975 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "881" }, { "page": "491" } ], "opinion_index": 0, "case_paths": [ "/idaho/119/0878-01" ] }, { "cite": "229 Ill. App. 3d 538", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5214922 ], "weight": 3, "year": 1992, "pin_cites": [ { "page": "539" }, { "page": "539" }, { "page": "539-40" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/229/0538-01" ] } ], "analysis": { "cardinality": 1221, "char_count": 32069, "ocr_confidence": 0.772, "pagerank": { "raw": 9.07445785759709e-08, "percentile": 0.5052964477851798 }, "sha256": "b217c95f02b959242b6e0617e2a6b9b2810fcb053e286d69f31dff6299291656", "simhash": "1:93e061b27661d7f3", "word_count": 5232 }, "last_updated": "2023-07-14T17:30:19.728803+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMIE DIAZ, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE ROBERT E. GORDON\ndelivered the opinion of the court:\nDefendant Jamie Diaz was convicted of three counts of aggravated driving of a vehicle under the influence of alcohol following a bench trial. The trial court sentenced defendant to the 44 days he served in the Cook County Department of Corrections, as time considered served, and 2 years\u2019 felony probation and assessed fines and fees including a $150 \u201ccrime lab driving under the influence (DUI) analysis\u201d fee. Defendant\u2019s motion for a new trial was denied. Defendant appeals, arguing that (1) the State failed to prove him guilty beyond a reasonable doubt, (2) his trial counsel was ineffective, (3) the $150 crime lab DUI analysis fee should be vacated, since no lab analysis was conducted, (4) the assessed fees should be offset by a $5-per-day presentence credit for the 44 days he was incarcerated prior to sentencing, and (5) the mittimus should be corrected to reflect a conviction of only one count of driving a vehicle under the influence of alcohol.\nBACKGROUND\nThe facts of this case are largely undisputed. At 8:44 p.m. on January 26, 2006, Officers Tyler and Tunzi \u201ccurbed\u201d a motor vehicle driven by defendant after Officer Tyler observed defendant not wearing a seatbelt. The officer did not observe defendant violate any other traffic laws and, in addition, did not observe defendant swerve or perform any other unusual actions.\nOfficer Tyler approached the defendant\u2019s driver\u2019s-side window with a lit flashlight and asked defendant to tender his driver\u2019s license. Defendant responded that he did not have one. Tyler observed that defendant had bloodshot eyes, \u201cmumbled\u201d speech with a Hispanic accent, and a \u201cmoderate\u201d odor of alcohol. Tyler asked defendant to exit his vehicle. Defendant, a slightly overweight male, complied, and as he exited his vehicle, the officer observed defendant sway and exhibit \u201ca little bit of a balance issue.\u201d\nTyler conducted a horizontal gaze nystagmus (HGN) test. Nystagmus, a physiological phenomenon, is a term used to describe an involuntary jerking of the eyeball. \u201c \u2018[It] *** is characterized by a slow drift, usually away from the direction of gaze, followed by a quick jerk of recovery in the direction of gaze. A motor disorder, it may be congenital or due to a variety of conditions affecting the brain, including ingestion of drugs such as alcohol and barbiturates, palsy of lateral or vertical gaze, disorders of the vestibular apparatus and brainstem and cerebellar dysfunction.\u2019 \u201d (Emphasis in original.) People v. Buening, 229 Ill. App. 3d 538, 539 (1992), quoting The Merck Manual of Diagnosis & Therapy 1980 (14th ed. 1982). \u201cHorizontal gaze nystagmus then is the inability of the eyes to maintain visual fixation as they are turned from side to side or move from center focus to the point of maximum deviation at the side.\u201d Buening, 229 Ill. App. 3d at 539, citing State v. Garrett, 119 Idaho 878, 881, 811 P.2d 488, 491 (1991). The horizontal gaze nystagmus test as routinely performed by law enforcement officers consists of:\n\u201c \u2018[T]he driver [being] asked to cover one eye and focus the other on an object (usually a pen) held by the officer at the driver\u2019s eye level. As the officer moves the object gradually out of the driver\u2019s field of vision toward his ear, he watches the driver\u2019s eyeball to detect involuntary jerking. The test is repeated with the other eye. [It is believed by certain law enforcement agencies that,] [b]y observing (1) the inability of each eye to track movement smoothly, (2) pronounced nystagmus at maximum deviation and (3) onset of the nystagmus at an angle less than 45 degrees in relation to the center point, the officer can estimate whether the driver\u2019s blood alcohol content (BAG) exceeds the legal limit ***.\u2019 \u201d Buening, 229 Ill. App. 3d at 539-40, quoting State v. Superior Court, 149 Ariz. 269, 271, 718 P.2d 171, 173 (1986).\nTyler testified that he explained how to perform the HGN test to defendant and that defendant confirmed that he understood. Tyler administered the HGN test by moving a pen from side-to-side at defendant\u2019s eye level. Tyler testified that defendant\u2019s eyes jerked while following the pen and when they were at maximum deviation, leading the officer to opine that defendant was under the influence of alcohol.\nTyler also conducted a one-leg-stand test. Tyler instructed defendant to place his legs together with his arms at his side and then raise his right leg in the air and count to 30. Defendant was unable to complete the one-leg-stand test.\nAfter these visual observations were completed, defendant was arrested for driving a vehicle while under the influence of alcohol and was also ticketed for failing to wear a seatbelt while operating an automobile. Defendant was taken to the police station for processing. Tyler requested defendant to take a Breathalyzer test and to answer the questionnaire on the back of the alcohol influence report, but defendant declined to do either.\nThe officer read defendant his Miranda rights, after which defendant stated that he was not going to answer any more questions. Notwithstanding that reply, Tyler immediately asked defendant if he had been drinking, and defendant stated that he had consumed two beers and was going out for more when the officers pulled him over. Tyler then ran defendant\u2019s name through the police database and found that he had two prior convictions for driving a vehicle under the influence of alcohol and that his driver\u2019s license was revoked. 625 ILCS 5/11 \u2014 501(a)(2) (West 2006). Section 11 \u2014 501(a)(2) of the Illinois Vehicle Code (Vehicle Code) states: \u201c(a) A person shall not drive or be in actual physical control of any vehicle within [the State of Illinois] while: *** (2) under the influence of alcohol.\u201d 625 ILCS 5/11\u2014 501(a)(2) (West 2006).\nDefendant was charged with three counts of aggravated driving of a vehicle while under the influence of alcohol. Count I charged defendant with violating section 11 \u2014 501(a)(2) of the Vehicle Code for a third time during a period in which his driving privileges were revoked. 625 ILCS 5/11 \u2014 501(c\u20141)(2) (West 2006). Count II charged defendant with violating section 11 \u2014 501(a)(2) of the Vehicle Code while his driving privileges were revoked. 625 ILCS 5/11 \u2014 501(c\u20141)(1) (West 2006). Count III charged defendant with violating section 11\u2014 501(a)(2) of the Vehicle Code for a third time. 625 ILCS 5/11\u2014 501(d)(1)(A) (West 2006).\nAt trial, Officer Tyler testified to his familiarity with the behavior of individuals under the influence of alcohol, both as a police officer for 3\u00bd years and from his personal life. He testified that he utilized the HGN procedure he learned at the police academy and adhered to the \u201cthree guidelines\u201d regarding HGN testing but could not recall the third guideline on direct examination. He also stated that he uses his \u201cbook\u201d and is not required to remember the guideline procedures for HGN testing.\nOn cross-examination, the officer testified that factors other than intoxication, such as fatigue, can cause nystagmus and difficulty balancing. He stated that he did not know whether defendant suffered from any \u201cphysical ] issues\u201d that could have caused the nystagmus aside from alcohol. Tyler further ceded that defendant could have had physical issues that would have precluded him from successfully completing the one-leg-stand test.\nThe parties stipulated that defendant had his driver\u2019s license revoked pursuant to section 11 \u2014 501 of the Vehicle Code (625 ILCS 5/11 \u2014 501 et seq. (West 2000)) on October 9, 2001, and again on November 1, 2001, on separate traffic citations. The State entered defendant\u2019s traffic abstract into evidence without objection, which documented two prior convictions for driving under the influence and a license suspension in effect on January 26, 2006.\nDefendant presented no evidence and did not testify on his own behalf, after defendant\u2019s motion for an acquittal was denied.\nThe trial court found defendant guilty on all three counts of aggravated driving under the influence of alcohol, noting the visual observations of Officer Tyler upon \u201ccurbing\u201d defendant\u2019s vehicle, defendant\u2019s inability to complete the one-leg-stand test, the positive results of the HGN test, and defendant\u2019s admission to having consumed two beers. The trial court orally found that counts II and III merged into count I, although the mittimus lists guilty findings on all three counts. The court sentenced defendant to the 44 days he had served and assessed fines and fees in the amount of $1,905.\nANALYSIS\nOn appeal, defendant first contends that he was not proven guilty beyond a reasonable doubt. Specifically, defendant argues that the State\u2019s case was based solely on Officer Tyler\u2019s testimony concerning his observations, which were insufficient to prove defendant guilty of aggravated driving a vehicle under the influence of alcohol beyond a reasonable doubt.\nIllinois law prohibits any person from (1) \u201cdriv[ing] or be[ing] in actual physical control of any vehicle\u201d while (2) under the influence of alcohol. 625 ILCS 5/11 \u2014 501(a)(2) (West 2006). The statute includes a number of aggravating factors, which elevate the penalty from a misdemeanor to a felony. The three specific aggravating factors at issue in this case create felony violations for driving a vehicle under the influence of alcohol \u201cduring a period in which [defendant\u2019s] driving privileges are revoked\u201d (625 ILCS 5/11 \u2014 501(c\u20141)(1) (West 2006)), driving under the influence of alcohol for a \u201cthird time, if the third violation occurs [while defendant\u2019s] driving privileges are revoked\u201d (625 ILCS 5/11 \u2014 501(c\u20141)(2) (West 2006)), and driving under the influence of alcohol \u201cfor the third or subsequent time\u201d (625 ILCS 5/11 \u2014 501(d)(1)(A) (West 2006)).\nAs noted, the parties stipulated that defendant had his driver\u2019s license revoked at the time of his arrest and that defendant had two prior convictions for driving under the influence of alcohol. Accordingly, disposition of defendant\u2019s sufficiency of the evidence argument turns on whether the State proved defendant guilty of a violation of section 11 \u2014 501(a)(2) of the Vehicle Code beyond a reasonable doubt.\nThe critical inquiry on review of a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Cunningham, 212 Ill. 2d 274, 278 (2004). It is not the function of this court to retry the defendant. People v. Collins, 106 Ill. 2d 237, 261 (1985). After a guilty finding, the fact finder\u2019s role as weigher of evidence is preserved through a legal conclusion that, upon judicial review, all of the evidence is considered in the light most favorable to the prosecution. People v. Migliore, 170 Ill. App. 3d 581, 592 (1988). The trier of fact determines witnesses\u2019 credibility. People v. Ortiz, 196 Ill. 2d 236, 259 (2001). We will not set aside a conviction unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt as to the defendant\u2019s guilt. People v. Cox, 195 Ill. 2d 378, 387 (2001).\nIn a prosecution for driving a vehicle under the influence of alcohol, the State must establish that (1) the defendant was in actual physical control of a vehicle, and (2) was under the influence of alcohol at the time. 625 ILCS 5/11 \u2014 501(a)(2) (West 2006). In order to prove that defendant was under the influence, the State must prove that as a result of consuming alcohol or any intoxicating compound, the defendant was unable to \u201c \u2018think or act with ordinary care.\u2019 \u201d People v. Bostelman, 325 Ill. App. 3d 22, 34 (2001), quoting Illinois Pattern Jury Instructions, Criminal, No. 23.29 (4th ed. 2000). The State need not present chemical evidence of intoxication in the form of a Breathalyzer or blood test to obtain a conviction; rather, the credible testimony of the arresting officer may be sufficient to prove the offense. People v. Janik, 127 Ill. 2d 390, 402 (1989). Additionally, a trial court may find a conviction for driving under the influence of alcohol based on circumstantial evidence. People v. Toler, 32 Ill. App. 3d 793, 799 (1975). Circumstantial evidence is proof of certain facts and circumstances from which the fact finder may infer other connected facts which usually and reasonably follow from the human experience and is not limited to facts that may reasonably have alternative, innocent explanations. People v. Garriott, 253 Ill. App. 3d 1048, 1052 (1993). The State bears the burden of proving each element of the charged offense beyond a reasonable doubt. People v. Bostelman, 325 Ill. App. 3d 22, 33 (2001).\nAfter weighing the evidence in the light most favorable to the prosecution, we cannot say the evidence was so improbable or unsatisfactory as to raise a reasonable doubt as to defendant\u2019s guilt. The evidence presented against defendant was sufficient to convict defendant, without considering the statement (admission) made by defendant at the police station that he had consumed two beers and the findings of the HGN test.\nAfter \u201ccurbing\u201d defendant\u2019s vehicle, Officer Tyler observed defendant with bloodshot eyes, \u201cmumbled\u201d speech, and a \u201cmoderate\u201d odor of alcohol. The officer\u2019s testimony that defendant failed to complete a one-leg-stand test and that the defendant exhibited a balance problem as he exited his vehicle was undisputed. Based on the officer\u2019s experience in observing people under the influence of alcohol, the officer opined that the defendant was driving a vehicle under the influence of alcohol. Finally, defendant refused to submit to a Breathalyzer test, which is circumstantial evidence of a defendant\u2019s consciousness of his own guilt. People v. Garriott, 253 Ill. App. 3d 1048, 1052 (1993). These facts, in combination, present sufficient evidence to conclude that a reasonable trier of fact could have found defendant guilty of driving a vehicle under the influence of alcohol beyond a reasonable doubt.\nAs noted, defendant offered no evidence in this case and did not testify on his own behalf. On cross-examination, Tyler conceded that there could be alternative, innocent explanations for the evidence presented against defendant. In closing arguments, defendant, through his attorney, underscored several of these potential explanations. Defendant suggested that his bloodshot eyes could have been caused by allergies or a cold; argued that defendant was overweight, thus had difficulty smoothly exiting the vehicle and successfully performing the one-leg-stand test; argued that defendant speaks with an accent, thus the officer perceived his accent as \u201cmumbled speech.\u201d However, defendant\u2019s closing argument is not evidence and cannot be considered as evidence. People v. Perry, 224 Ill. 2d 312, 348 (2007). It is true that Officer Tyler testified that factors other than intoxication, such as fatigue, could contribute to poor performance of field sobriety tests. However, no evidence in the record suggests that defendant was actually fatigued when he was asked to perform the field sobriety tests administered by Officer Tyler.\nThe burden of proof was on the State to prove the defendant guilty beyond a reasonable doubt. The defendant has no burden and need not testify or present any evidence, and he exercised that privilege. However, in this case the evidence presented by the State, consisting of the officer\u2019s testimony, constituted sufficient evidence to convict when the trial court found the officer\u2019s testimony credible.\nIn light of the foregoing, we find that the evidence presented in this case before the trial court was not so improbable or unsatisfactory that it created a reasonable doubt as to defendant\u2019s guilt of driving a vehicle under the influence of alcohol.\nDefendant next contends that his trial counsel was ineffective. Specifically, defendant contends that (1) his counsel was ineffective for failing to move the trial court to suppress his statement that he had consumed two beers, after invoking his right to remain silent, and (2) for failing to move the trial court to conduct a Fyre hearing before hearing testimony regarding the HGN test results, and (3) for failing to object to the HGN test results.\n\u201cTo prevail on a claim of ineffective assistance of counsel, a defendant must show that his attorney committed such serious errors as to fall beyond an objective standard of reasonableness, and that, without those objectively unreasonable errors, there was a reasonable probability that his trial would have resulted differently.\u201d This is a two-prong test. People v. Ward, 371 Ill. App. 3d 382, 434 (2007), citing Strickland v. Washington, 466 U.S. 668, 687-94, 80 L. Ed. 2d 674, 693-98, 104 S. Ct. 2052, 2064-68 (1984); People v. Albanese, 104 Ill. 2d 504, 526 (1984). \u201cIn Strickland, the United States Supreme Court delineated the two-prong test to use when evaluating whether a defendant was denied the effective assistance of counsel in violation of the sixth amendment.\u201d (Emphasis added.) People v. Bell, 373 Ill. App. 3d 811, 821 (2007). \u201cUnder Stickland, a defendant must demonstrate that counsel\u2019s performance was deficient and that such deficient performance substantially prejudiced defendant.\u201d Bell, 373 Ill. App. 3d at 821, citing Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. Our Illinois Supreme Court has stated that to demonstrate performance deficiency, a defendant must establish that counsel\u2019s performance was below an objective standard of reasonableness. People v. Edwards, 195 Ill. 2d 142, 163 (2001). In evaluating sufficient prejudice, \u201c[t]he defendant must show that there is a reasonable probability that, but for counsel\u2019s unprofessional errors, the result of the proceeding[s] would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.\u201d Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.\nAs noted, defendant\u2019s first contention under Strickland is that defense counsel was ineffective for failing to move the trial court to suppress defendant\u2019s statement at the police station that he had consumed two beers.\nTo protect an individual\u2019s right not to be a witness against himself, found in both the United States and Illinois Constitutions (see U.S. Const., amend. V; Ill. Const. 1970 art. I, \u00a710), interrogation must cease once the individual indicates in any manner and at any time prior to or during a custodial interrogation that he wishes to remain silent. People v. Edwards, 301 Ill. App. 3d 966, 977 (1998), citing Miranda v. Arizona, 384 U.S. 436, 444-45, 16 L. Ed. 2d 694, 707, 86 S. Ct. 1602, 1612 (1966). \u201c[A]ny statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise.\u201d Miranda, 384 U.S. at 474, 16 L. Ed. 2d at 723, 86 S. Ct. at 1628.\nThis right to silence may be invoked either verbally or through conduct that clearly indicates a desire to end all questioning. See People v. Nielson, 187 Ill. 2d 271, 287 (1999) (finding the defendant had invoked his right to remain silent when he placed his hands over his ears, turned his head, and chanted \u201c \u2018nah nah nah\u2019 \u201d). If verbal, the individual\u2019s demand to end the interrogation must be specific. See People v. Pierce, 223 Ill. App. 3d 423, 429 (1991). It is undisputed here that defendant invoked his right to remain silent.\nUpon being informed of his rights, including his right to remain silent, defendant stated that he desired to answer no more questions. Immediately upon invocation of his right to remain silent, defendant was asked if he had consumed any alcohol that day. Defendant responded that he had consumed two beers and was going out for more prior to being pulled over.\nWe can imagine no clearer example of a violation of defendant\u2019s right to remain silent. Once a suspect invokes his right to remain silent, interrogation must immediately cease. People v. R.C., 108 Ill. 2d 349, 353 (1985). Rather than terminating the interrogation immediately, which is what Miranda requires, the officer instantaneously asked defendant if he had consumed any alcohol.\nAlthough the statement was taken in violation of Miranda, counsel\u2019s failure to object to the admission of the statement cannot necessarily be said to fall below an objective standard of reasonableness. Even though the statement that defendant had consumed two beers was a clear result of a Miranda violation, this court cannot say that the first prong of the Strickland test was satisfied. It may have been sound trial strategy to allow that evidence to stand and either argue to the court that two beers did not contain enough alcohol to affect defendant\u2019s operation of the automobile when no unusual driving was evident or conclude that the trial court reasonably could find that two beers did not affect the defendant\u2019s operation of his automobile. Ward, 371 Ill. App. 3d at 434 (a mistake in trial strategy or tactics, without more, does not amount to ineffective assistance of counsel); People v. Palmer, 162 Ill. 2d 465, 476 (1994) (counsel\u2019s trial strategy is \u201cvirtually unchallengeable\u201d).\nHowever, even if counsel\u2019s failure to move to suppress this evidence satisfies the first prong, defendant cannot satisfy the second prong of his ineffective assistance of counsel claim because he was not sufficiently prejudiced by his counsel\u2019s failure to move to suppress the station house statement. As noted, under the second prong of the Strickland standard, the defendant must show that, \u201cbut for\u201d counsel\u2019s deficient performance, there is a reasonable probability that the result of the proceeding would have been different. People v. Colon, 225 Ill. 2d 125, 135 (2007); People v. Evans, 209 Ill. 2d 194, 220 (2004). \u201c[A] reasonable probability that the result would have been different is a probability sufficient to undermine confidence in the outcome \u2014 or put another way, that counsel\u2019s deficient performance rendered the result of the trial unreliable or fundamentally unfair.\u201d Evans, 209 Ill. 2d at 220; Colon, 225 Ill. 2d at 135.\nAs explained above, even if the station house statement were suppressed, it is not likely that the result of the trial would have been any different. In light of the overwhelming evidence of defendant\u2019s guilt including the officer\u2019s testimony regarding his observations and defendant\u2019s own refusal to take a Breathalyzer, we find defendant cannot satisfy the second prong of the Strickland test.\nDefendant then argues that his counsel was ineffective for failing to move the trial court to conduct a Frye hearing to determine the admissibility of the HGN test results.\nGeneral acceptance in the scientific community was established as the foundational test for the admission of scientific evidence in Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923), a case involving the admissibility of polygraph tests:\n\u201cJust when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while the courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.\u201d Frye v. United States, 293 F. at 1014.\nThe Illinois Supreme Court recently held that a Frye hearing must be held to determine if the HGN test has been generally accepted as a reliable indicator of alcohol impairment. People v. McKown, 226 Ill. 2d 245, 248 (2007). Based on our supreme court\u2019s decision in McKown, it is now clear that defense counsel should move for a Frye hearing, so that the trial court can determine whether the results of the HGN test are admissible. However, on the date of this trial, the existing case law did not require a Frye hearing for the admissibility of the HGN test (People v. Robinson, 349 Ill. App. 3d 622 (2004)). As a result, this court cannot say that the failure to request a Frye hearing was a serious error that fell below an objective standard of reasonableness sufficient to satisfy the first prong of the Strickland test.\nIn addition, even if the first prong of the Strickland test were satisfied, the admission of this evidence would be harmless error. \u201c \u2018[W]hen the competent evidence in the record establishes the defendant\u2019s guilt beyond a reasonable doubt and it can be concluded that retrial without the erroneous admission of the challenged evidence would produce no different result,\u2019 \u201d the admission of the improper evidence can be considered harmless error. McKown, 226 Ill. 2d at 276, quoting People v. Arman, 131 Ill. 2d 115, 124 (1989).\nIn the case at bar, even if the results of the HGN test were not admitted into evidence, it is not likely that the result of the trial would have been any different. In light of the overwhelming evidence of defendant\u2019s guilt from the officer\u2019s testimony regarding his observations, and his opinion based on those observations that defendant was driving a vehicle under the influence of alcohol, together with defendant\u2019s refusal to take a Breathalyzer, we find that if the admission of the HGN results without first conducting a Frye hearing to determine its admissibility was error, it was harmless.\nDefendant then argues that his trial counsel was ineffective for failing to object to the admission of the results of the HGN test because the State failed to lay a proper foundation.\nTo lay a proper foundation for the admission of HGN results, the State needs to demonstrate (1) that the officer who administered the test was trained in the procedure and (2) that the test was properly administered. People v. Basler, 193 Ill. 2d 545, 552 (2000). The State\u2019s evidence included Tyler\u2019s testimony that he administered the test following the \u201cbook\u201d and the \u201cthree guidelines\u201d that he learned at the police academy, although he testified that he could not remember the third guideline at trial. Tyler also testified that when he moved his pen from side-to-side, defendant\u2019s eyes exhibited nystagmus. The State agrees that the foundation for the admission of the HGN test results was lacking. However, we are persuaded by the State\u2019s argument that defense counsel\u2019s failure to object to the admission of the HGN test results could have been sound trial strategy.\nA review of the record reveals that defense counsel attacked Officer Tyler\u2019s credibility during closing arguments, specifically highlighting the officer\u2019s inability to recall the third guideline when administering an HGN test. We find defense counsel\u2019s decision not to object to the admission of this evidence, so defendant could later attack the credibility of the officer during closing arguments, to be sound trial strategy. Palmer, 162 Ill. 2d at 476. As a result, defendant cannot satisfy the first prong of the Strickland test.\nEven if defense counsel had made the objection to the foundation of the HGN evidence and that objection was sustained, counsel\u2019s failure to object would not have resulted in a different trial outcome, as mandated by the second prong of the Strickland test. People v. Evans, 186 Ill. 2d 83, 93 (1999). This court cannot say that there is a reasonable probability of a different outcome because, even if defense counsel had opposed the admission of the HGN test, it is likely that the State would have immediately cured the foundation deficiency by asking more questions concerning Tyler\u2019s knowledge and experience with the HGN test. Even if the State did not cure the foundational deficiencies for admission of the HGN results, this court cannot say that the second prong of the Strickland test would have been satisfied.\nLooking at the totality of the evidence, the trial court observed Tyler\u2019s demeanor, found him to be credible, and gave credence to the aggregate evidence at trial that showed that defendant was driving a vehicle under the influence of alcohol, aside from the results of the HGN test. We conclude that counsel\u2019s failure to object to the admission of the HGN test results did not \u201cundermine confidence in the outcome\u201d of the trial, and would have not changed the result. Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.\nIn addition, defendant argues that the trial court\u2019s mittimus should be corrected to accurately reflect the correct total of fines, fees, and costs.\nDefendant was ordered to pay fines and fees that included charges of: $190 (felony complaint filed), $60 (felony complaint conviction), $20 (preliminary hearing), $200 (state DNA identification system), $20 (automation), $15 (document storage), $15 (court services), $5 (court system), $1,000 (DUI \u2014 law enforcement \u2014 subsequent offense), $30 (court system), $150 (crime lab DUI analysis), $100 (trauma fund), and $5 (spinal cord trauma fund). The trial court\u2019s mittimus incorrectly states that these fines, fees, and costs add up to $1,905, rather than the correct sum of $1,805. Defendant argues that the trial court erred by ordering a $150 crime law DUI analysis fee, since no analysis occurred in this case. We agree. Under section 5 \u2014 9\u20141.9 of the Unified Code of Corrections (730 ILCS 5/5 \u2014 9\u20141.9 (West 2006)) a $150 crime lab DUI analysis fee should be assessed in each case where a laboratory analysis occurs. Since no DUI analysis occurred here', the $150 fee must be vacated.\nIn addition, defendant argues that he is entitled to a $5-per-day credit toward the $1,000 \u201cDUI \u2014 Law Enforcement \u2014 Subsequent Offense\u201d fine. We agree. Section 11 \u2014 501(j) states that a person found guilty of driving a vehicle under the influence of alcohol shall be fined $1,000 when the person has previously been convicted of this same offense or a similar provision of a local ordinance. 625 ILCS 5/11 \u2014 501(j) (West 2006). This fine is subject to the mandatory credit of $5 for each day that the defendant was incarcerated. 725 ILCS 5/110 \u2014 14(a) (West 2004). Accordingly, defendant was incarcerated 44 days and is entitled to a $220 credit toward the $1,000 fine.\nFinally, defendant argues that the mittimus should be corrected to reflect the conviction of only one count of aggravated driving a vehicle under the influence of alcohol to accurately reflect the trial court\u2019s oral pronouncement that the other counts in the information would merge with the first. We agree with defendant and find that the mittimus should be corrected to reflect the proper sentence imposed by the court.\nRemandment to the trial court is unnecessary in this case since this court has the authority to directly order the clerk of the circuit court, criminal division, to make the necessary corrections. 134 Ill. 2d R. 615(b)(1); People v. McCray, 273 Ill. App. 3d 396, 403 (1995). Accordingly, this court directs said clerk: (a) to correct the mittimus to reflect defendant was convicted of one count of aggravated driving a vehicle under the influence of alcohol, and (b) to correct the trial court\u2019s mittimus to accurately reflect that all fines, fees, and costs with credits result in $1,435 assessed against defendant.\nCONCLUSION\nFor the foregoing reasons, we affirm the judgment of the circuit court of Cook County as modified. We vacate the $150 crime lab DUI analysis fine and find that all fines, fees, and costs, with credits, result in $1,435 assessed against defendant.\nAffirmed as modified.\nWOLFSON and GARCIA, JJ., concur.", "type": "majority", "author": "JUSTICE ROBERT E. GORDON" } ], "attorneys": [ "Michael J. Pelletier and Stephen L. Gentry, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (James E. Fitzgerald, Manny Magence, and Annette Gonzalez Thornton, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMIE DIAZ, Defendant-Appellant.\nFirst District (1st Division)\nNo. 1\u201406\u20142690\nOpinion filed November 5, 2007.\nMichael J. Pelletier and Stephen L. Gentry, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (James E. Fitzgerald, Manny Magence, and Annette Gonzalez Thornton, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0339-01", "first_page_order": 355, "last_page_order": 368 }